Franchester Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1954

110 N.L.R.B. 1391 (N.L.R.B. 1954)

FRANCHESTER CORPORATION 1391
FRANCHESTER CORPORATION and UNITED HATTERS, CAP AND MILLINERY
WORKERS INTERNATIONAL UNION, AFL . Cases Nos. 10-RC-1839
and 10-CA-1575. December 14,1954
Decision and Order
On October 27, 1953, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1), (3), and (5) of the
Act and recommending that it be ordered to cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. It was further recommended that
the Board sustain the objections of the Union to the election which was
held on June 4, 1952, set aside the election, and either certify the Union
or, alternately, order the holding of another election in the representa-
tion proceeding, Case No. 10-RC-1832, which has been consolidated
with this complaint proceeding. Thereafter the Respondent, the Gen-
eral Counsel, and the Union filed exceptions to the Intermediate Re-
port and supporting briefs; the Respondent requested oral argument.
The request for oral argument is hereby denied inasmuch as the ex-
ceptions and briefs, as well as the evidence introduced at the hearing,
adequately reflect the position of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following additions and modifications.'
1. We agree with the finding of the Trial Examiner that the Re-
spondent interfered with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act by asking former employee
Arnold and former Foreman Wallace to check up on the union activ-
ities and sentiments of other employees, by the questions put by
Foreman Myers and Forelady Gattis to employees Gryder and Hen-
ning concerning union membership and voting intentions; by Fore-
man Myers' statement that the "people would lose the plant" if the
Union won and the Respondent would rid itself of union members, and
by Panter's statement that it was not time for the Union to come into,
the plant because the stockholders would be "left holding the bag."
We do not base a finding upon the garbled statement attributed to In-
' Ave correct the following errors in the Intermediate Report which do not affect the-
merits of the conclusions affirmed by us:
In the section concerning the McCollum discharge , fourth paragraph , line 2 . "March
20" should be "March 18"; last paragraph , last sentence : "only after the results of the
June election were known" should read "only after union organization began."
110 NLRB No. 211.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustrial Relations Director Morin, to the effect that the plant would
be painted depending upon the outcome of the election.
In addition we base a finding of 8 (a ) ( 1) violation upon the fol-
lowing testimony of employees Lulu Henning and Wrice Powers, Jr.,
not mentioned by the Trial Examiner. The Henning testimony was
that Forelady Gattis remarked to machinist Acklin within Henning's
hearing that if the Union won, the Respondent would move and "Win-
chester would have nothing" ; that Foreman Myers told Henning when
she asked him what would happen if the Union won, that the plant
would probably move to California, but if the Union lost "everybody
would come back to work with a raise, and we would have more work
and better working conditions" ; Foreman Panter's statement several
days before the election that if Henning would tell him she would
vote "no," she would have a job as long as she wanted it and "would
come back with a raise and plenty of work and better working condi-
tions" as well as his statment that if the employees "voted the Union
out this time they [the Respondent] would never let anything like that
happen again." Myers' and Panter's promises of more work and bet-
ter working conditions were undenied. We do not credit Gattis' de-
nial, or Myers' denial of the remainder of the remarks Henning at-
tributed to him; nor do we credit Panter's only testimony concern-
ing the remarks attributed to him by Henning : "I never said nothing
to Lulu about any Union." The Powers' testimony, part of which was
admitted and the rest undenied, was that Foreman Myers drove to
Powers' store in a nearby town before the election (Powers was then
in laid-off status) telling him that laid-off employees would receive
holiday and vacation pay when they returned to work; that "there
would be eight good jobs open after the election if the Union did not
come in" and "the guys that stuck with the company would be the
guys to receive those jobs"; that employees Crabtree, Garner, Gilliam,
and David would be missing if the Union failed to come in and their
places would be open; and that Powers would be called back to work
after the election.
We agree that the finding of the Trial Examiner concerning sur-
veillance of union meetings to the extent that it applies to the meetings
held at the Keeler Hotel after March 3, 1952. Surveillance of earlier
meetings by the Respondent's supervisory personnel cannot be made
the basis of a finding in view of the 6-month limitation of Section 10
(b) of the Act and the service of the charge in this case on Septem-
ber 4. We note that employees Hannah and Henry Dotson, who were
credited by the Trial Examiner, testified that Foreman Myers, or
Foreman Panter, or both, were in the vicinity of the hotel at every
one of the meetings held there up through the date of the election on
June 4. The defense that Myers and Panter had personal business
which necessitated their presence in the hotel vicinity at meeting time
FRANCHESTER CORPORATION 1393
on Tuesday evenings we do not accept despite the proximity of the
bus station on the corner diagonally opposite and the location of the
hospital and an automobile agency on parallel streets one block away.
Myers, we note, contradicted himself by stating on cross-examina-
tion that he never drove past the hotel at meeting times after testify-
ing on direct to the contrary. However, as to the meetings held at
the home of employee McCollum across the road from the plant, we
think the evidence is insufficient to make a finding of surveillance by
Respondent's supervisors inasmuch as the Union chose a meeting
place so clearly visible from the plant. See Salant d Salant, Inc., 92
NLRB 417, 446-447.
We also base a finding of 8 (a) (1) violation upon Respondent's
posting a notice forbidding solicitation for the Union during work-
ing hours on penalty of discharge while permitting both supervisors
and employees to engage in antiunion activity. The Trial Examiner
referred to the posting of the no-solicitation notice and to the anti-
union activity but based no finding upon the inconsistency of the two
and the interference, restraint, and coercion implicit in that com-
bination. In its exceptions the Union also asserts that the Trial Ex-
aminer should have found that the no-solicitation rule was enforced
discriminatorily to proscribe any prounion activity on company prop-
erty at any time. We consider the evidence insufficient to support
the latter contention and hence make no finding to that effect.
We agree with the finding of the Trial Examiner that the assurance
of holiday pay to laid-off employees on the eve of the election, when
said employees had no "certain knowledge" of their right to such
pay, constituted a promise of benefit in violation of Section 8 (a)
(1). We note that the assurances were made 'during the first sea-
sonal layoff period, following approval of the holiday-pay plan by
the Wage Stabilization Board, and that no explanation of how the
plan would work had been posted in the plant or verbal explanation
made to the employees as a whole. In the circumstances, including
the testimony of Industrial Relations Director Morin that he did not
customarily visit employees in their homes to explain plant policies or
benefits, the special trips made by him and by Foreman Myers to
assure laid-off employees of these benefits were clearly calculated to,
and reasonably tended to, cause the employees to reject a collective-
bargaining agent.
2. We affirm the Trial Examiner's finding that leather sewer Robbie
McCollum's discharge was discriminatory in violation of Section 8
(a) (3) of the Act. The Respondent contends that the discharge of
this well-known union adherent, whose work was clearly acceptable
before union activity began, was occasioned by her "passing" to sub-
sequent operations defective work that she had done, as exemplified
by incidents occurring between March 18 and December 5, 1952,
338207-55 -vol 110-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning which it placed memoranda in her personnel file. De-
spite the tenor of most of the testimony introduced by the Respond-
ent on this point, it makes no contention that it considered McCol-
lum's work objectionable merely by reason of defects during that
period; in fact, defects seem to have been expected in the leather
sewing operation and one-high leathers-was specifically supposed
to be "passed." It bases its defense solely on the ground that McCol-
lum "passed" other types of defect, yet the evidence summarized
in support refers to 4 to 5 dozen hats that McCollum either gave
directly to her forelady or put aside to redo later, and to only 6 in-
dividual hats actually "passed" by her to other operators. In addi-
tion, we note testimony by Moravek, the Respondent's superintendent
of straw hat manufacture, that the redoing of 29 or 30 hats from
1 operator during the week of McCollum's discharge, albeit for high
leathers, was considered "negligible." Inevitably a question arises
as to the likelihood that the Respondent would condone the redoing
of so many hats as a calculated risk at the same time it condemned
by discharge isolated infractions of its "no-passing" rule. We con-
clude on the record as a whole that the Respondent's discharge of
McCollum for passing defective work was a mere pretext; that in
truth the Respondent discharged McCollum with discriminatory
intent to rid itself of this very active union adherent.
3. We do not find, as did the Trial Examiner, that the Respondent
violated Section 8 (a) (5) by reason of the character of the unfair
labor practices committed by it in violation of Section 8 (a) (1) in
the preelection period. We note that on the day before the election
the Union's president sent a telegram to the Respondent complaining
of specific acts of intimidation which the Respondent's supervisors
were engaging in, stating that the Union would move to set the election
aside if the "will of the workers, the overwhelming majority of whom
are members of the Union" should be defeated, and adjuring the
Respondent to stop the intimidation and "insure a free election in
accordance with the law of the land." Having knowingly chosen to
pursue its right to representation of these employees by the election
procedure, the Union cannot, after participating in the election,
pursue that right in an 8 (a) (5) proceeding. This accords with our
recent decision in Aiello Dairy Farms, 110 NLRB 1365. However,
inasmuch as the representation proceeding is still pending, and the
Respondent's preelection antiunion activity was calculated to and
did reasonably tend to interfere with the employees' exercise of a
free choice in the election held June 4, 1952, we shall set the election
aside and shall direct the Regional Director to conduct a new election
at such time as he deems appropriate. Specifically we rely upon that
preelection activity which occurred after the Board's Decision and
Direction of Election in the representation proceeding, issued May 19,
FRANCHESTER CORPORATION 1395
1952, in accord with the Board's current policy in applying the non-
waiver rule of its decision in The Great Atlantic & Pacific Tea
Company, 101 NLRB 1118. Current policy equates the time between
the date of the Board decision and election to the time between con-
sent agreement and election; conduct occurring during either period
tending to improperly affect the election results is not waived, for
purposes of objecting to the election by the Union's participation in
the election. Here the objectionable activity includes the holiday-pay
assurances, surveillance at union meetings held at the hotel, interroga-
tion by Forelady Gattis, and promises of benefit by Foremen Myers
and Panter, as well as threats by Foreman Myers.
Order
IT IS HEREBY ORDERED that the election held in Case No. 10-RC-1832
on June 4, 1952, be, and it hereby is, set aside.
IT IS HEREBY FURTHER ORDERED that the representation proceeding
be remanded to the Regional Director for the Tenth Region for the
purposes of conducting a new election at such time as he deems the
circumstances permit the free choice of a bargaining representative.
IT IS HEREBY FURTHER ORDERED upon the entire record in the consoli-
dated proceeding, and pursuant to Section 10 (c) of the National
Labor Relations Act, as amended, that the Respondent, Franchester
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Hatters, Cap and Mil-
linery Workers International Union, AFL, or any other union of its
employees, by discriminatorily discharging them or by discriminating
in any manner in regard to their hire, tenure of employment, or any
other term or condition of employment.
(b) Interrogating employees concerning their union affiliations or
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) ; engaging in surveillance of union
meetings; threatening reprisal and promising benefits to employees
dependent upon their engaging in or abstaining from union activities;
prohibiting union activity in the plant while permitting antiunion
activity.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Hatters, Cap and Mil-
linery Workers International Union, AFL, or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities except to
the extent that such right may be affected by an agreement requiring
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment,
as authorized' in Section 8 (a) (3) of the Act, as guaranteed in
Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robbie McCollum immediate and full reinstatement
to her former or a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges; make the said
Robbie McCollum whole for any loss of earnings in the manner set
forth in "The Remedy" section of the Intermediate Report; and, upon
request, make available to the Board or its duly authorized agent or
agents, for examination and copying, all payroll records, social-se-
curity payment records and reports, and any other pertinent records
within its control necessary to compute the amount of back pay due.
(b) Post at its plant at Winchester, Tennessee, copies of the no-
tice attached marked "Appendix A," 2 copies of such notice to be fur-
nished by the Regional Director for the Tenth Region and be posted,
after first being signed by a representative of the Respondent, for at
least sixty (60) consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
(c) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order the steps taken by the
Respondent to comply therewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent refused to bargain in violation of Section 8 (a)
(5) of the Act be and, it hereby is, dismissed.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in United Hatters, Cap
and Millinery Workers International Union, AFL, or discourage
activity in support of that organization, or any other labor or-
ganization, or discourage any employee from exercising the rights
secured to him under the National Labor Relations Act by means
of discriminatory discharge or discriminating in any manner in
FRANCHESTER CORPORATION 1397
regard to hire, or tenure of employment , or any term or condi-
tion of employment.
WE, WILL NOT interrogate employees concerning their union
affiliations or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1), nor engage
in surveillance of union meetings , nor threaten reprisal or promise
benefits to employees dependent upon their engaging in or ab-
staining from union activities ; nor prohibit union activity in the
plant while permitting antiunion activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations , to join or assist United Hat-
ters, Cap and Millinery Workers International Union, AFL, or
any other labor organization , to bargain collectively through rep-
resentatives of their choosing, and to engage in collective bar-
gaining or other mutual aid or protection , or to refrain from any
and all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Sec-
tion 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
WE WILL offer Robbie McCollum immediate and full reinstate-
ment to her former position and make her whole for any loss of
pay suffered.
All our employees are free to became, remain , or refrain from be-
coming members of the above -named Union , or any other labor organ-
ization , except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act. We will
not discriminate against any employee because of membership in or
activity on behalf of any labor organization.
FRANCHESTER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On June 4, 1952, pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board (herein called the Board) on May 19, 1952, an
election by secret ballot was conducted among certain employees of Franchester
Corporation (herein called the Respondent), in Case No. 10-RC-1832, under the
direction and supervision of the Board's Regional Director for the Tenth Region
(herein called the Regional Director). United Hatters, Cap and Millinery Workers
International Union, affiliated with the American Federation of Labor (herein called
the Union), had petitioned the Board, prior to that election, to be certified as repre-
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative for the purposes of collective bargaining of the classes of employees of
the Respondent who participated in the election, they having been found to con-
stitute an appropriate bargaining unit.
On June 11, 1952, the Union filed objections to alleged conduct by the Respond-
ent which was said to have affected the election. On September 3, 1952, the Union
filed a charge, claiming the commission of unfair labor practices by the Respondent,
substantially the same, alleged conduct set forth by the Union in its objections to
conduct affecting the results of the election. After the filing of a first amended
charge by the Union on December 12, 1952, the General Counsel of the Board,
by the Regional Director, on January 30, 1953, issued a complaint (Case No.
10--CA-1575) against the Respondent, alleging violations of Section 8 (a) (1), (3),
and (5) of the National Labor Relations Act (61 Stat. 136, herein called the Act),
constituting unfair labor practices within the meaning of Section 2 (6) and (7) of
the Act. On the same day, the Regional Director issued and served upon the Re-
spondent and the Union, as parties to Case No. 10-RC-1832, his report on the
election, the objections to the result of the election, and recommendations to the
Board in which he recommended that the Board direct a hearing to be held upon
the Union's objections to the result of the election, to which the Respondent filed
exceptions. The Board thereafter, on February 25, 1953, caused an order to be
entered, requiring a hearing to be held on the issues raised by the objections of
the Union concerning the result of the election in Case No. 10-RC-1832, and pro-
viding for the consolidation of the hearing of that case with similar issues raised
by the filing of charges in Case No. 10-CA-1575.
The substance of the objections to alleged conduct affecting the result of the elec-
tion and the essential allegations as to alleged unfair labor practices are the same.
As set forth in the complaint in Case No. 10-CA-1575, these are, in summary:
The Respondent: (1) Discharged and thereafter refused to reinstate Robbie Mc-
Collum, an employee, because of her membership in and activities on behalf of
the Union, and because of her activities with other employees of the Respondent
for the purposes of collective bargaining or other mutual aid or protection; (2)
interrogated its employees concerning their membership in, activities on behalf of,
and sympathies for the Union; (3) threatened and warned its employees that its
Winchester plant would be closed before it would recognize the Union or allow the
employees to be organized; (4) threatened its employees that they would be dis-
charged for their union membership, activities, or sympathies; (5) promised and
gave economic benefits to its employees for refraining from union activities, on
condition that they did not assist, and for not having assisted, the Union; (6) kept
under surveillance meetings of the Union and the activities of its employees on
behalf of the Union; (7) instructed and requested certain of its employees to
obtain information for it pertaining to the union activities of its employees; (8)
permitted and encouraged antiunion activities during working hours on its premises
while prohibiting prounion activities during working hours on its premises; (9)
threatened and warned its employees that their union activities would adversely
affect their employment and opportunities and that the Winchester plant would
never be organized by the Union; and (10) threatened and warned its employees
to refrain from assisting, becoming members of, or remaining members of the
Union.
By verified answer filed on February 13, 1953, the Respondent effectively denies
commission of these acts attributed to it; denies that it has contravened Section 8
(a) (5) of the Act and says it has not bargained collectively with the Union because
the Union is not the exclusive representative of its employees either in fact or in
law; and for an affirmative defense asserts it has at all times been in compliance
with the Act.
The Regional Director on March 3, 1953, issued an order consolidating the cases
and giving notice of hearing upon the issues raised by the objections to conduct
affecting results of the election. Thereafter, pursuant to notice, this consolidated
matter came on for hearing before the duly designated Trial Examiner, on the
issues raised by the objections and by the complaint and answer. The hearing was
commenced at Winchester, Tennessee, on May 25, 1953, and was closed at that
place on June 3, 1953. At the hearing, all parties were represented by counsel and
the Respondent and the Union each also was represented by one of its vice presi-
dents. Full opportunity was afforded the parties to be heard, to examine and cross-
examine the witnesses, to introduce evidence bearing on the issues, to argue orally
upon the record, and to file briefs, proposed findings of fact, and proposed conclu-
sions of law.
Counsel for the Respondent moved after the opening of the hearing that the
objections to conduct affecting the result of election be set aside on the ground that
FRANCHESTER CORPORATION 1399
the Union waived the right to object by entering into the election with knowledge
of the facts and circumstances, later set forth in the objections (dated June 9,
1952), and enlarged upon in the charge and first amended charge; the Trial Exam-
iner denied the motion on the state of the record at that point, no testimony then
having been offered on either side. Upon reviewing the whole record after hear-
ing, the Trial Examiner adheres to his prior ruling on the authority of The Great
Atlantic & Pacific Tea Company, 101 NLRB 1118.
Upon the entire record in the case, from his observation of the witnesses, and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Franchester Corporation, is and at all of the times material
herein has been a Delaware corporation, licensed to do business in the State of
Tennessee, having an office and a manufacturing plant at Winchester, Tennessee,
where it is engaged in the manufacture of straw hats. The Respondent in the course
and conduct of its business operations at its Winchester, Tennessee, plant (herein
sometimes called the plant or the factory), during the 12 months immediately pre-
ceding the issuance of the complaint herein, which period is representative of all
the times material hereto, purchased raw materials, supplies, and equipment valued
in excess of $500,000, of which approximately 90 percent, in value, was purchased
outside the State of Tennessee, and shipped in interstate commerce to the plant.
During the same period of time the Respondent manufactured finished products
valued in excess of $750,000, of which approximately 95 percent, in value, was sold
and shipped in interstate commerce to customers outside the State of Tennessee.
The Respondent is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
United Hatters, Cap and Millinery Workers International Union, affiliated with
the American Federation of Labor, is a labor organization within the meaning of
Section 2 (5) of the Act, admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary findings
The Respondent was organized as a corporate subsidiary of Hat Corporation of
America early in the year 1950, and in February of that year leased its plant premises
in Winchester, Tennessee, from the Franklin County Development Corporation for a
10-year period, for the purpose of manufacturing straw hats to retail at $5 and $7.50,
these to extend the lines of hats of the Hat Corporation which customarily retailed
at $10, $12, $15, and $20. The Hat Corporation plant, located at South Norwalk,
Connecticut, did not manufacture the lower priced lines, but previously had obtained
them through subcontracts.
The first operations of the Respondent at its Winchester plant, early in 1950, were
experimental in the sense that there was a training period with no real production
except for the making of a few sample hats. When operations were begun, the
Respondent employed 9 persons; in October 1950 it employed about 18 persons; by
May 1951 it had 49 employees; in November of that year, 90 employees; in April
1952, 96 employees; and in April 1953 it employed approximately 115 persons in
its production departments.
Steven K. Moravek, the superintendent of manufacture of men's straw hats for
the Hat Corporation and the Respondent, was in charge of the Respondent's plant,
dividing his time between Winchester and South Norwalk. W. P. Morin, a vice
president in charge of personnel and labor relations for the Hat Corporation and
the Respondent, also divided his time between the two. Thomas Myers, Jr., foreman
of the Winchester plant, was second in command and was in active charge when
Moravek was away, Myers customarily communicating when necessary with Moravek
or other officials at the South Norwalk plant by telephone. During these times,
Thurman Panter was supervisor of maintenance at the plant. Moravek, Morin,
Myers, and Panter were all supervisors within the meaning of the Act.
The production season for straw hats extends from September to May, industry
practice being that in the off season when full employment is not available for all
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, available work is shared among them. In the summer of 1951, the
Respondent, contrary to usual industry practice, continued to make stock for storage
and as a result there was full employment for most employees and the summer of
1951 was not a slack period at Winchester. The Respondent pointed out the advan-
tages of making stock during the summer time: employees do not have to be laid
off, and there is a lessening of the danger of losing trained employees who fail to
return after the slack season. It points out, too, the danger of making hats for stock
and storing them because they sometimes become mouldy in storage. In the summer
of 1952, it was not until June or July, the Respondent again decided to make stock
for storage that year, although production for that summer was somewhat greater
than for the summer of 1951. The number of employees at the plant had increased
during the year, however, so that full scale employment was not attained during the
summer of 1952. Accordingly, the practice of sharing available work among all
employees was followed during the summer of 1952, although it appears that all em-
ployees did not desire to share the work and some of them asked to be laid off
for the summer.
According to the Respondent, prior to its organization, the Hat Corporation of
America for a number of years had maintained collective-bargaining relations with
the Union at the Hat Corporation plant at South Norwalk. After first attempting
without success, the Respondent says, "to get relief from the Union at South
Norwalk" with whom the Hat Corporation had a collective-bargaining agreement,
it was decided to find a community where the labor supply was plentiful and where
the area rates were lower, in order to make the lower-priced lines of hats.
Carmen Lucia, vice president and southern director of the Union, was put in
charge of the organizing efforts of the Union among the employees of the Re-
spondent. She arrived in Winchester on February 22, 1952.1 She almost imme-
diately communicated with a number of employees of Respondent and 1 week later,
on February 29, conducted a meeting at the Keeler Hotel, in Winchester, at which
9 male employees of the Respondent were present. Each of the employees signed
an authorization card, giving the Union authorization to represent him for the pur-
poses of collective bargaining; each man was given a number of blank authorization
cards, and the union organizing campaign was launched that evening at that meeting.
On March 3, she conducted a meeting at the Keeler Hotel at which both male and
female employees of the Respondent were present, and all subsequent meetings at the
Keeler Hotel were attended by both men and women employees. Some 6 or 7
other meetings were held by Lucia and these and other employees of the Respondent
at the Keeler Hotel in the spring of 1952. After the first meeting on February 29,
the principal place utilized by Lucia in her organizing efforts was the home of Robbie
McCollum, located across the road which passes in front of the plant and about 150
to 200 yards from the plant. Between the time of her arrival, on February 22, and
the time of her departure from Winchester on the day after the election, June 5,
Lucia was at McCollum's house almost every day, talking to employees of the
plant there in her exertion of effort in aid of the Union's organizing activities. Many
of the employees Lucia talked to were spending their lunch hour; she also met with
second-shift employees at McCollum's house. She would arrive there at about
10:30 a. m., prepare lunch for herself and McCollum and sometimes for some of
the employees, and would discuss union affairs. She would wash the lunch dishes
and thereafter at about 4 p. m. would meet employees coming off the first shift
and discuss the benefits of union organization with them. Three or four formal
union meetings were held at McCollum's house, the first one having been held at
7:30 p. m. and the other ones at about 4:10 p. m. after the release of the first shift
workers.
Between February 29 and March 7, some 60 authorization cards, indicating a
desire for membership in the Union, had been signed by employees of the Respondent
and delivered to Lucia. All except 4 of these 60 cards had been signed on or be-
fore March 3. On about March 5, Lucia telephoned the plant and asked for Mr.
Moravek; she spoke to someone over the telephone and advised that person of,the
Union's claim that it represented a majority of the employees and its desire to meet
with the Respondent; she was advised to assert her claim to "the office in South
Norwalk"; she thereupon telephoned the president of the Union, Alex Rose, who was
in New York, and told him that she had asked for recognition and had been referred
by the Respondent to its home office in South Norwalk; and that Mr. Rose told her
'All dates hereinafter mentioned refer to the year 1952, unless otherwise specifically
noted.
FRANCHESTER CORPORATION 1401
that he would communicate with the officers of the Respondent in South Norwalk and
suggested that in the meantime she get in touch with the Union's attorney with refer-
ence to petitioning, tor an election. Marx Lewis, general secretary-treasurer of the
Union, testified with respect to a meeting held between officials of the Union and
officials of the Respondent in New York at the office of the Hat Corporation of
America on March 7. At that meeting the Union asserted that it represented a
majority of the employees at Respondent's plant and requested recognition as col-
lective-bargaining representative for the employees at that plant. At that meeting
the union representatives advised the representatives of the Respondent that Lucia,
at Winchester, had previously made a request for recognition and that the matter
had been referred by the Respondent's representative here to the Respondent's offi-
cials at South Norwalk. At the New York meeting on March 7, the representatives
of the Respondent refused to agree to the bargaining unit suggested by the Union,
and refused to enter into a stipulation for a consent election. Subsequently the
Union filed its petition for investigation and certification of representatives with the
Regional Director of the Board at Atlanta on March 10, that case becoming No. 10-
RC-1832. After the filing of the petition and after a hearing before the Board with
respect to what would constitute an appropriate bargaining unit the election, referred
to above, was held at Winchester on June 4.
With respect to what constituted an appropriate bargaining unit, the Union and
the Respondent took divergent views both before and after the filing of the Union's
petition for certification as representative. The Union first claimed that the em-
ployees at the Winchester plant should be included in the unit of employees rep-
resented by the Union at the South Norwalk plant. The Respondent refused to agree
to this request of the Union, and also refused to recognize the appropriateness of a
separate unit suggested by the Union for the Winchester plant because it included
inspectors who were excluded in the plant at South Norwalk and also because it in-
cluded certain plant office workers. Three inspectors and two part-time office work-
ers employed by the Respondent were claimed by the Union. After filing of the
union petition, counsel for the Respondent requested an informal conference with
a representative of the Board's Regional Office at Atlanta to settle the question of
unit; the request for an informal conference was denied, whereupon counsel for the
Respondent advised the Board's representative at Atlanta of his regret that such an
informal conference could not be had since he felt the matter could be ironed out at
such a conference. Representatives of the Union and of the Respondent, at a meet-
ing held on March 19, could reach no agreement with respect to the constitution of
an appropriate unit.
On March 25, after the filing of the union petition, the Respondent sent a letter
to each employee at the Winchester plant which it described as an attempt to clarify
questions asked by various employees. The letter in substance stated that it was
not true that employees who did not join the Union would lose their jobs; that it was
not obligatory to vote for the Union if they signed a union card; that the wage rates
of union and nonunion employees would not be different; that joining a union did
not mean that an employee could no longer be discharged, but that discharge would
depend on the acceptability of the work performed and the employee's conduct in
accordance with company rules; and that joining a union would have no effect on un-
employment insurance rights. On May 14, after the hearing in Case No. 10-RC-
1832 (in April), the Respondent again sent a letter to its employees at the Winchester
plant stating that the hearing had been held; that the question was presently pending
before the Board; that there would be an election and that the employees had the
right to vote in accordance with their convictions; that the election would be by secret
ballot and any oral or written commitments would not bind the employees in any
way; and that both parties would have to abide by the outcome of the election and
that it was important that the employees vote. A third letter addressed to the em-
ployees at the Winchester plant, sent on May 29 and setting forth the time of the elec-
tion, stated that a vote of "yes" meant that "you wish the Union to represent you" and
a vote of "no" meant "you do not desire the Union to represent you."
The acts complained of by the Union as constituting interference with the con-
duct of the election, and set forth in the complaint herein as constituting unfair labor
practices, occurred during the months of March, April, May, and June, except that
it is alleged that Myers, the foreman, promised economic benefits to employees of the
Respondent on condition that they refrain from engaging in activities on behalf of
the Union and on condition that the Union should fail to organize the employees,
in July 1952, and except that in or around September and October 1952 the Respond-
ent gave its employees economic benefits for having refrained from engaging in union
activities and for voting against the Union in the election held by the Board.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discharge of McCollum
Robbie McCollum was employed by the Respondent on April 5, 1950, and was
continued in its employ until she was discharged on December 5, 1952. One of the
first to be employed at the plant , she received primary instruction in the making of
so-called coconut straw hats, and then , after about 2 weeks , on straw sailor hats.
In late May 1950 , she was assigned to the job of sewing leathers in straw hats, which
she held until the day of her discharge. At the time she was instructed in leather
sewing, one other leather sewer , Jo Johnston , had also been assigned to learn the
job. Johnston was taken off after a day or so, and later was returned to the job to
receive further instruction from McCollum, who later trained Evelyn Hill, Frances
Burt, Dorothy Shockley, Shirley Peters, Odell Counts, and Mary Ellen Wise as
leather sewers. She also trained Kathleen Gattis, who, after about the first of
February 1952, until McCollum's discharge, was her forelady.
McCollum at times sewed leathers for "samples," that is, sample hats furnished
to salesmen , which had to meet high standards of workmanship ; she resewed leathers
in hats which previously had been sewn at the Norwalk plant of the Respondent's
parent corporation; and she frequently resewed leather in hats which had first been
sewn by leather sewers, trained by her, at the Respondent's plant.
A leather sewer receives a straw hat within a lot of a dozen, and in that hat,
unsewn, but supposedly of right size, is the leather for that hat. The leather has
a reed attached to it. The leather sewer quickly examines the leather, sews it in by
machine, examines it for proper sewing, and repeats the operation on the next
hat in the lot, and on each hat in each following lot. If the size is wrong, or the
leather defective, or if there is any other irregularity, the leather sewer is expected
to put the hat aside ; if she has done an imperfect job of sewing on a hat, she is
expected to put that hat aside so that the leather may later be removed and
that leather or another leather properly sewn into the hat. Some leathers when
placed loose in a hat may have a silk piece attached, to finally remain, after sewing,
between the leather and the inside crown; if the silk is not properly placed, the
sewer is expected to detect the imperfection. In short, as a hat is handled during
the sewing, and after sewing, the sewer's responsibilities include a form of preliminary
inspection. Although the speed and dexterity of the several sewers may vary, the
sewing of 12 dozen leathers, or about 1 to a hat per minute, as a rough standard
of performance, seems to be established. It is not unusual that among the hats
sewed by any one leather sewer during any one day, some must be set aside as
improperly sewn; the leathers from these hats are later removed, and leathers
resewn, either by the first sewer or another, according to instructions from the
forelady or another supervisor. McCollum said she frequently resewed leathers
first sewn in by others. Although the straw hats regularly manufactured at this
plant are made to retail for $5 and $7.50, McCollum on at least one occasion was
requested to sew the leather in a $100 hat. All in all, she was, at the time of her
discharge, the oldest leather sewer in point of service, the most experienced, and,
according to the preponderance of the evidence herein, at least as capable in the
job as any of the other leather sewers.
According to the Respondent, McCollum was warned for producing unsatis-
factory work on March 20, June 30, and October 23, 1952, these warnings being
evidenced by memoranda from her produced by the Respondent. Witnesses for the
Respondent testified that McCollum was told each one of these times, and on
another occasion in June, that if she continued to do poor work she would be
discharged-she admits that her attention was drawn to work done by her about
these times, but denies that she was warned she would be discharged if there was
occasion for further complaint against her work, except as it might have been
implied by Myers in a conversation between them on a day in October after she
had been called into his office and in the presence of Gattis had had her attention
called to certain hats which she previously had sewn. This particular dozen of
hats had been done by McCollum, had been brought to the forelady's attention
by a trimmer, and of these 12 hats there were 6 in which the oil silk and backing
needed replacing because they were torn and scarred. Gattis, on October 23,
brought them to Myers who talked to McCollum and Gattis about them and it
appears that on the following day Myers warned McCollum that if she again passed
poor work she would be discharged. Further, with respect to this dozen hats, it
appears that just before quitting time a few days prior to October 23, McCollum
was having trouble with her machine and called for a mechanic to make necessary
adjustments; that the mechanic, during the course of making the required adjust-
ments, instructed McCollum to run several hats through her machine while he
was making such adjustments ; that the first half dozen hats were imperfect because
FRANCHESTER CORPORATION 1403
of the irregular working of the machine and the oil silk and backing did become
torn and scarred; that the machine adjustment was completed by the mechanic
and he and McCollum then left work for the day, McCollum placing the dozen
hats in back of her bench so that the leathers on the imperfect ones could be
ripped out and new leathers sewn. However, on the following day the hats had
been removed, and McCollum did not see them again until they were called to her
attention in Myers' office after Gattis had taken them from the trimmer to Myers.
It is claimed that on November 25 two hats previously sewn by McCollum were
found by Myers, the leather of one of which had already been ripped out by the
inspector on final inspection in order to send it back for replacement; that some-
time between that day and December 5, Myers found a third hat while he was at
final inspection with the inspector. ' (Another hat, said to have been done by Mc-
Collum, and improperly sewn, was found after her discharge.) Myers did not
talk to McCollum on November 25 but when he called the Norwalk office on
that day he told Morin about the two hats he had found; he informed Morin of
his finding of the third hat, and at that time Myers recommended the discharge
of McCollum; and Morin told him that company officials from Norwalk would be
in Winchester in the near future and would look at McCollum's work before acting
on the recommendation. On December 5, Riccus, a vice president, visited the
Winchester plant and after examining the three hats informed Myers that Mc-
Collum was subject to discharge. McCollum indicated no desire to discuss the
matter with Riccus, according to Myers, and she was thereupon discharged, the
reason for her discharge as transmitted to her being that her work was unsatisfactory.
The Company takes the position that the discharge of McCollum was not that
McCollum did work which resulted in the defects complained of, but that her dis-
charge is justified because the defective work was done by her and was passed
through to final inspection.
It seems clear from the record that every leather sewer does defective work at
times, either because the leathers are not of the right size, or because of irregularity
in sewing machine action, or for other excusable reasons. It appears, too, that
hats done by leather sewers other than McCollum were and are frequently defective
and that these defects are not caught by the leather sewer but are caught elsewhere,
perhaps not until final inspection, when they are returned for proper sewing. During
June, some hats sewn by Shockley were caught at final inspection and returned;
this was at about the same time that Respondent claims McCollum was warned
about her work. McCollum called attention on December 5 to a hat returned to
Shockley a day or two before with the very same kind of defect laid to her, and
to 10 dozen hats sent back because of defective sewing done by Wise. Shockley and
Wise were the only other two leather sewers then employed. In other words, it is
not at all unusual for defects to slip past the leather sewer and later be found either
in the trimming department or elsewhere such as in final inspection.
To the charges against her made by the Respondent that she had done imperfect
work, McCollum offered to the Trial Examiner what seemed to be perfectly logical
explanations. As remarked above, any leather sewer sews a considerable volume
of hats during any one day, and, although expected to detect defects in her work,
quite frequently does not catch the defect before the hat leaves her machine to go
to the trimming department with other hats in that particular lot. It is not surprising
that McCollum's forelady or other supervisors called her attention to defective
work done by her, as they called the attention of other leather sewers to defective
work done by them. In some instances, as was clearly shown by the testimony not
only of McCollum but of witnesses for the Respondent, some leathers were too
large and the leather sewer was expected, if possible, to make tolerance therefor
in the sewing of such a leather; other leathers were too small, and, according to
instruction, the leather sewer attempted to sew those leathers if possible, or, if not
possible, to return the hat with the unattached or unsewn leathers for a proper as-
sembly. Sewing through the leather or reed is one fault frequently made by a
leather sewer; if the machine is not properly adjusted, the leather or backing may
be so scarred as to require the rejection of the hat. High leathers are leathers that
appear to be small and set high in the bandline of the hat, usually caused by im-
proper flanging, an operation performed just before sewing; this imperfection gen-
erally can be overcome in the setoff operation, and therefore, the leather sewer is
not held to strict account for passing high leather. Indeed, it appears that high
leathers were customarily passed and not rejected.
With respect to the dozen hats which formed much of Respondent's emphasis with
respect to McCollum's alleged poor work, Respondent asserted that the mechanic
or machine fixer who Mrs. McCollum said instructed her to run those hats through
while adjustments were being made (who was not called to testify), was under instruc-
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to use rejects when making machine adjustments, and that McCollum knew this,
and should not have used the ones she did. Concerning this particular accusation
against McCollum, it would seem, if instructions of management were disregarded
and new hats and not rejects were used for the correction or adjustment process,
that the machinist, Acklin, was as equally chargeable with dereliction as McCollum.
However, in the opinion of the Trial Examiner, the occurrence was greatly inflated
and in itsely would not be sufficient cause for discharge. Nor would that incident,
taken in connection with the close scrutiny of McCollum's work then and there-
after, account sufficiently for the discharge of McCollum.
Gattis, the forelady, assumed her duties around the first of March, shortly after
the acquisition of knowledge by the Respondent that McCollum was active in union
organization. The personnel records maintained indicating "warnings" to McCollum
were kept without McCollum's knowledge and never displayed to her; apparently
the personnel record so kept was unique as to her and was not kept as to any other
leather sewer, except that one memorandum was made with respect to defective
work done by Shockley.
It was only after the results of the election held on June 4 were known, that the
Respondent began keeping such close observation of McCollum's work. It is the
opinion of the Trial Examiner, and he so finds, that a case of incompetency was
deliberately fabricated against McCollum, which resulted in her ultimate discharge
on December 5. For example, it appears that the dozen hats called to McCollum's
attention on October 23 had been sewn by her at the instruction of Acklin on or
about October 11, some 2 weeks prior to the time her so-called defective work was
called to her attention.
The Trial Examiner rejects completely the suggestion advanced by the Respondent
that McCollum passed many defective hats because she was intentionally seeking
to raise an incident so that she would be discharged and be able to get her case
before the Board. She claimed discrimination against her as early as May, on the
occasion of a layoff; and later, after the June election, she told Morin that she felt
she was being discriminated against because of her activities on behalf of the Union.
The Respondent well knew of these activities, that her house had been and was being
used as union headquarters; that Lucia and Arthur Foster, another union organizer,
frequently met with employees there; and, for the reasons shown below, well knew
that she attended union meetings at the Keeler Hotel. Further, it was only after
the results of the June election were known that she was chided for passing imperfect
hats; before she began her union activities she had been held in regard for her ability
and had been complimented on her record by management.
C. Surveillance
The Respondent impliedly concedes that Myers and Panter did, in fact, on Febru-
ary 29, technically breach the Act in that they deliberately put themselves in proximity
to the Keeler Hotel to observe which of the Respondent's employees attended the
union meeting held there that evening; and in argument sets up as a defense that at
that time Myers and Panter were uninstructed as to the provisions of the Act, but
immediately upon being instructed by higher management ceased such activity, and
as a further defense, that such surveillance was made long before the 6-month limita-
tion provided in Section 10 (b) for the filing of an unfair labor practice charge.
The Respondent seems to have been well advised in conceding the fact-the evidence
is too strong to admit any conclusion other than that Myers and Panter were engaged
at that particular time in an effort to determine how many and who of the Respond-
ent's employees attended that meeting. That Myers and Panter did not thereafter
continue their surveillance is disputed, and much testimony was presented to show
that they did.
The business section of the town is dominated by the courthouse, which occupies
a square bounded on the north by Jefferson Street and on the east by First Avenue.
The Keeler Hotel is located one block north of First Avenue, on the northwest
corner of Jefferson Street and Second Avenue. The bus station used for through
busses is diagonally across the street, on the northeast corner of Jefferson Street and
Second Avenue; a Chevrolet agency is on College Street, which bounds the court-
house on the east, and is about two blocks from the hotel; and a hospital is several
blocks west of the hotel and may be reached from Second Avenue.
Some 7 or 8 meetings were held at the Keeler Hotel, usually 1 a week, after the
first meeting on February 29. The General Counsel has presented evidence, all of
which was denied by Myers and Panter, to show that they continued their surveil-
lance of union meetings after the first one, at least until the meeting of June 3, the
evening preceding the day of the election. Among those who attended union meet-
FRANCHESTER CORPORATION 1405
ings at the hotel, Olive Gryder testified that she saw Panter parked across from the
hotel during the course of a meeting in March, saw Myers drive by in his automobile
that same evening, and she said Panter drove by the hotel one evening just before the
beginning of a union meeting, turned around, and drove back past it again Henry
Dotson said he saw Panter near the hotel at the time of the first union meeting and
also again at the time of the second or third meeting, Myers and Panter were parked
at the bus station across the street and that he saw them drive by at different subse-
quent times. Homer Crabtree testified that in March he saw Panter drive back and
forth on Jefferson Street and then park at the bus station facing the Keeler Hotel and
also at a later meeting saw Panter drive by the hotel at about the time a union meet-
ing was to begin. Buford Collins said that he saw Myers and Panter together in a
parked car near the bus station during the time a meeting was held in March and
heard Betty Hannah call to Panter to "come on in," and also said that he saw Panter's
car parked near the parking lot adjacent to the hotel on the evening of June 3. Betty
Hannah testified that she called to Panter, as he drove by the hotel before the begin-
ning of one union meeting, to "put his eyes back in his sockets and come on in" and
others said they heard her. Christine Stahl said that she saw Panter drive by the
Keeler Hotel on the evening before the election, June 3. McCollum and Lucia both
testified with respect to Myers and Panter watching the union meeting on March 3.
Shirley Peters testified that on March 3, as she was driving to the Keeler Hotel to
attend the union meeting held that evening, she observed Panter driving in one
direction to circle the block in order to pass the hotel, and Myers driving around
the same block in the opposite direction. After she had picked up Audrey Crowe,
another employee, in her automobile, she turned her car around in the street and
proceeded toward the courthouse square, where she saw Panter and Myers parked
in front of the bank on the northwest corner of Jefferson Street and First Avenue,
about a block from the hotel.
The Respondent asserts that in this small town and in the normal course of their
activities, both Myers and Panter had occasion frequently to pass the Keeler Hotel.
Panter testified that on a few occasions he called to pick up telegrams at the town's
only telegraph office located in the hotel; that several times he went to the bus station
across the street from the hotel to meet his brother who was in the Air Force sta-
tioned in Alabama; that he also went there to meet his sister who lives in Chatta-
nooga; and that during the period involved he visited the hospital which is about a
block or two away from the hotel at least twice. Myers testified that during this
period he used to help out at the hospital and also worked part time at the Chevrolet
agency in downtown Winchester, and that on the evening of March 3, he was riding
around in a neighbor's new car, when they saw Panter at the bus station, and stopped
to talk to him. Panter testified that he very frequently drove around the town with
his wife in the evening.
The evidence is too clear to be disputed that Panter and Myers, from February on
through to June 3, went out of their way to observe the union meetings attended by
employees of the Respondent held at the Keeler Hotel. The explanations advanced
on their behalf as to the reasons for their presence near and at the hotel on these sev-
eral occasions are not convincing. That they were there to observe the employees as
they went in and came out of the meetings seems apparent; that they were kept ap-
prised of the times these meetings were to be held seems evident from the record;
and that each employee who attended these meetings knew they were near the hotel
is well established by credible testimony.
Surveillance is claimed of the gatherings of employees at McCollum's house at
various times between March and the day of election. As noted above, Lucia was
accustomed to meet with employees during the lunch hour and after the end of the
day shift at the McCollum house. This house is in more or less plain view from the
plant and is about 100 yards from Myers' residence, located on the same side of the
road which passes the plant and across another street which runs into the main road.
Anyone going between the plant and the business district of the town must neces-
sarily pass the McCollum house. It is claimed that Myers was in the habit of stand-
ing on a loading platform during the lunch hour in order to observe which of the
employees went in and out of the McCollum house. The Respondent says that
Myers stood on the loading platform only for the purpose of receiving supplies which
regularly arrived at the plant between the hours of 12:30 and 1 p. in. Further, the
Respondent says, it would be unrealistic to believe that Myers would leave his house
after lunching there to return to the factory and attempt to observe the McCollum
house when he could much better see it from his own house. Whether Myers had a
sufficient view from the loading platform to see who actually entered and left the
McCollum house, because of a partial obstruction of the view by growing trees and
bushes, is in dispute. While he was standing there, he could without doubt have
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seen which of the employees left the factory and walked in the direction of the
McCollum house , and could have seen them return.
Panter lived in a direction from the factory which would take him in front of the
McCollum house as he went back and forth from his home and the plant in the
morning, at noon, and at the end of the day. As to him , it is claimed that at times
he changed the usual place where he parked his car to one from which he could see
employees going to and returning from the McCollum house . It is claimed that
Myers and Panter , at a time just before the election and in late afternoon , stood on
the roof of one of the factory buildings and watched the McCollum house during
the holding of a union meeting there. The Respondent says that Myers and Panter
frequently were on the roof because, over quite a long period of time and until
permanent repairs were made about June 1952, they were examining the roof for
leaks which resulted in the development of mould on hats in storage in that building.
Myers on the loading platform, Panter in his automobile , and Myers and Panter
on the roof certainly had the opportunity to observe the goings and comings of
employees , whether or not they actually saw them go in and come out of the
McCollum house through the door. The Trial Examiner is satisfied after hearing
testimony and studying photographs placed in evidence that Myers, from the loading
platform, could have, had he desired , without much difficulty and without regard to
the presence of foliage between the platform and the McCollum house , determined
who went in and out of that house.
The facts that Moravek, Myers, and Panter must have known that Lucia had been
given the freedom of the McCollum house ; that she called at the plant to meet Mrs.
McCollum and other employees after work ; and that she passed out handbills near
the plant under their observation , are undisputed.
Activities in connection with union activities within the plant (discussed at more
length below ), together with the surveillance practiced by Myers and Panter near the
Keeler Hotel , lead the Trial Examiner to believe that Myers and Panter took ad-
vantage of the proximity of the McCollum house to the plant , and their own usual
and customary habits or practices , to observe employees ' activities in and around
the McCollum house.
D. Interrogation and other within-plant activities
The Respondent asserts, without contradiction , that it first learned of union ac-
tivities on March 3 , when two employees , James Collins and Hoyt Garrison, were
found soliciting for the Union during working hours (Collins had been reported to
Myers by another employee , who complained that Collins was interfering with his
work by soliciting him for membership in the Union ); that this information was
first telephoned to Morin , director of industrial relations of the Respondent, at
South Norwalk by Myers, who was then acting as superintendent of the plant; that
Morin advised Myers that he would communicate with counsel and call him back;
that the following day, March 4, Morin telephoned Myers and asked him whether he
had been in the vicinity of any union meetings and that Myers then informed Morin
that he and Panter had been in the vicinity of the union meeting at the Keeler Hotel
on March 3 ; that Morin told Myers he had been advised by a representative of the
Union that Lucia had charged that company supervisors were questioning employees
at the plant and were watching union meetings ; and that Morin told Myers that
foremen and supervisors were not to question employees about the Union and were
to stay away from places where union meetings were being held. During the course
of his conversation with Myers on March 4 , Morin dictated a memorandum or notice
to be placed on the bulletin board , stating : "Any employee found violating the
company rule of soliciting for the Union during working hours may be terminated."
On March 3 , Myers had immediately cautioned Collins against soliciting union
membership during working hours. Later that day, a group of 9 employees ad-
vised Myers that Collins was not the only one interested in the Union , but that they
all were. The 9 men were the same ones who had attended the February 29 meeting
with Lucia at the Keeler Hotel . Thereafter, on March 5 , as claimed by the Respond-
ent, but in any event not later than March 11 , the Respondent posted the notice,
referred to above , indicating that it was a violation of company rules to solicit for the
Union on company time . On March 11 , Morin warned Collins and Hoyt Garrison,
who worked on the night shift , that soliciting for the Union during working hours
might subject them to discharge . On that day Morin also read a statement to a
group of employees , after working hours, in which he in effect informed them that
they must decide for themselves whether their interest and the interest of the Union
were the same . Myers had occasion to warn Luther Garner , Chester Gilliam, AlineElliott, and Betty Hannah that as employees their union interest could not be dis-
played during working hours ; Morin again warned Chester Gilliam at a later time.
FRANCHESTER CORPORATION 1407
These statements and conversations with employees in themselves and in the cir-
cumstances were properly within the right of management to make. However, there
is evidence that the Respondent went further and permitted and encouraged antiunion
activities during working hours.
J. B. Arnold, a nonsupervisory employee working on the 4 p. in. to midnight shift
during the spring of 1952, testified that about 3 weeks before the election Myers asked
him what he had found out about the Union and that each time Myers asked him
this he would inform Myers of what he knew, if anything, concerning union organiz-
ing progress; that at Myers' request he questioned other men on that shift regarding
the Union; and that Panter had also asked him what he had found out and whether
or not he was going to join the Union. He said that Myers in response to a question
asked by the employees had remarked that everyone would get a raise if the Union
lost and that he had heard Myers say in a conversation between him and other em-
ployees, held at the office factory door on the day of the election that the Company
would rid itself of union employees. Glen Wallace, first a foreman over blockers
and flangers, was transferred to the second shift as a foreman about the month of
January. After union activity began, he said that Myers instructed him to "keep
in touch" and find out who was in the Union, and that accordingly he reported back
to Myers concerning the sympathies of employees regarding the Union. Accord-
ing to him, Myers told him that the employees would regret it if the Union "got in"-
that the plant would then be moved, but if the Union failed to organize the employ-
ees, the plant would be enlarged and that felt hat manufacture would begin; he said
further that Myers mentioned the names of two employees on that shift who were
known to be adherents to the Union, and said he intended to watch them closely and
if he could, lay them off. Arnold said he repeated some of his conversations with
Myers to Dotson, a nonsupervisory employee.
Arnold and Wallace have been characterized by the Respondent as disgruntled
employees, whose testimony should not be credited too highly. The Trial Examiner
cannot discount the testimony of either one of the two on essential facts-within the
limits of their respective abilities for self-expression, they were straightforward and
direct, and their testimony should be accorded credit and weight.
Other employees were called by the General Counsel to demonstrate the interest
displayed by management in the activities of its employees in connection with the
Union. Almost without exception, their testimony emphasized the interest shown
by representatives of the Respondent in the Union's progress. Olive Gryder testi-
fied that in late March Myers asked her if she was going to join the Union; Lulu
Henning was questioned on June 2, as to how she was going to vote by Gattis, her
forelady, and was asked by Gattis the next day "if her mind was working all right
that morning"; Henry Dotson said that about 2 weeks before the election Myers, in
response to a question asked by another employee, said that if the Union won "the
people would lose the plant," but if the Union lost, the Respondent would rid itself
of members of the Union. Hoyt Garrison reported a conversation between him and
Panter about the middle of March, in which Panter expressed the opinion that it
was not time for the Union, because the stockholders (meaning the owners of the
stock of Franklin County Development Corporation, the Respondent's lessor) would
be "left holding the bag." On June 4, before the election, Garrison said that Morin,
in response to a question directed to him by Garrison, informed him that whether a
factory building at the plant would be painted depended upon the outcome of the
election.2 Chester Gilliam first was cautioned by Myers, he said, who told him
that if he had not read the notice regarding the rule against soliciting for the Union
"he had better read it again" and that in late June or early July had been asked by
Morin, in the presence of Myers and Panter, how the Union was coming along, who
was present at union meetings, and how another employee fit in the Union. In the
autumn, after the election, Aline Elliott and Betty Hannah were cautioned by Myers,
during working hours, not to talk to McCollum or anyone about the Union. Han-
nah, who had been laid off in May, talked to Myers about returning to work in Octo-
ber and, according to her, he said he could not put her back to work at her old job,
but he might have work for her in another department, and that he did not like the
way the two groups were acting." About 2 weeks later she was given work, with
admonition from Myers not to talk to McCollum? Homer Crabtree testified that
2 Garrison said his father was a stockholder
3 Hannah previously had sought the aid of C O. Ponce, a stockholder in the Franklin
County Development Corporation, in securing a job with the Respondent. She testified
that on the night of the first union meeting attended by her, Prince telephoned her at
her home, wanted to know "what is this union mess"", and asked her to fight the Union
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the election , Morin stopped by his work bench and told him he (Morin) did
not want anyone "to talk Union," that Crabtree asked Morin if that applied to the
Company as well as the Union , and that Morin answered "yes." Crabtree was a
known union adherent-he had been present at a meeting in March , at which Morin
spoke, when Crabtree had attempted to reply to some of Morin's remarks?
It seems clear , from all of the evidence , that the Respondent , through Morin,
Myers, and Panter, exerted considerable effort , without much display of discretion,
to determine who was active on behalf of the Union and to discourage the efforts
of those who were by interrogation and suggestion of loss of employment benefits.
E. Promises of holiday pay
Sometime in November 1951, the Respondent filed an application with repre-
sentatives of the Wage Stabilization Board for authorization to put into effect a paid
holiday and paid vacation plan and an incentive payment plan . The Wage Stabiliza-
tion Board , by letter dated December 3, 1951, notified the Respondent that it had
approved the holiday plan and the vacation plan as requested but had denied the
Respondent 's approval of its proposed piece rate plan "without prejudice ." Under
this ruling , in order to be entitled to a paid holiday , an employee was required to
work on the day before and the day after the holiday, provided work was available;
and would be entitled to be paid for any holiday occurring in the slack season pro-
vided the employee had worked on the last day that work was available and had
returned to work when it again became available . The efforts of the Respondent
to obtain permission from the Wage Stabilization Board to institute the vacation,
holiday, and incentive plans were discussed by Morin, who met with different groups
of employees for that purpose in the fall of 1951, prior to the filing of the applica-
tion with representatives of the Board , and before union activity had begun at the
plant. At the hearing, several of the witnesses rather vaguely remembered having
been informed by Morin of the Respondent 's plan to obtain approval for these addi-
tional employee benefits.
The General Counsel has asserted that representatives of the Respondent dis-
cussed holiday and vacation pay with certain employees immediately before the
election with the intent to influence its employees against the Union The evidence
may be summarized , as follows:
Morin arrived in Winchester from South Norwalk on June 3, the day before the
election, and was informed that Frances Burt and a Mrs. Wise wished to see him;
he thereupon telephoned Burt and then went out to her house . He said she inquired
whether the Respondent granted pregnancy leaves, and he advised her that it did;
that she then asked about the slack holiday season then approaching , and he ex-
plained that before deciding whether to make stock for storage that summer, the
Respondent was waiting to hear what the condition of the hats made the previous
summer was-whether they had developed mould. He then told her about the
holiday pay plan under which she would receive holiday pay for holidays not worked
by her during the slack period upon her return to work. According to her, Myers
phoned her and asked if it would be convenient for her to see Morin , he says she
invited him to call at her house. Before he left,there , he said he asked her if she
knew of anyone else who wanted to talk to her, and she mentioned the name of
Mrs. Azelee Whaley, and she telephoned Mrs. Whaley , Morin then went to the
latter's home , where they had a conversation which, except for the mention of preg-
nancy leave was substantially the same as the one between Morin and Burt. Whaley
said that Burt told her that Morin wanted to see her, that he visited her house-and
while there informed her that it was planned to move all straw hat production to
' Crabtree related that Prince had, sometime in April , requested a meeting ; that they
met in the courthhouse where Prince told him that he had heard of union organizing
activity , that the Union would be a detriment , that the Franklin Development Corpora-
tion intended to build an addition to the plant , but that the Respondent would move
from Winchester " if the Union got in " Crabtree said further that Prince called him on
the telephone at the Keeler Hotel , on the evening before the election , told him that he
had heard a rumor to the effect that the Company would be more likely to move if the
Union did not get in , and asked Crabtree to be sure that the employees understood that
the rumor was false.
The Trial Examiner has disregarded this testimony , and the testimony of Hannah. as
in any way to be taken as showing Prince as one who was acting for or on behalf of
the Respondent ; nevertheless, the actions of Prince reflect the common knowledge of and
interest in the results of the election in this comparatively small community
FRANCHESTER CORPORATION 1409)
Winchester, and that consequently there would be more work and that she would
receive holiday pay for holidays not worked during the slack season. In the after-
noon of the same day, Morin called on Mrs. Wise, and told her substantially wbat
he had told Burt. Wise did not testify; Burt did not remember having been informed
of the holiday plan prior to Morin's visit; and Whaley did have some recollection of
having heard something about it.
At about 8 p. in. on June 3, Myers called at the home of Katheryn Thomas;
she was out and Myers left word with her husband that she would receive pay for
holidays not worked after she was called back when work again became available.
On the following morning, Mrs. Thomas said she received a telephone call from
Myers, who asked her if she had a way to "get over to vote." She had been laid
off in May; when she returned to work in October, she received pay for two inter-
vening holidays. Myers' visit to her house was discussed by Mrs. Thomas with at
least one other employee before the election the following day.
The holiday and vacation pay plan, as has been noted, was approved by the
Wage Stabilization Board in December 1951; the first layoffs at the beginning of
the slack season occurred in May 1952, so that it appears that the question of an
employee's right to receive pay for a holiday not worked would not have arisen
before the beginning of the busy season in the autumn of 1952, and that the
Memorial Day and Independence Day holidays would have occurred during the
slack season.
The Respondent informed its employees of its proposed holiday and vacation
plan in November, before its approval; nowhere does it appear in the record that
its approval was communicated to the employees, collectively or individually, except
to four individuals on the eve of the election. Having failed to notify the employees
of approval of the plan, it seems to have been ill-advised to have singled out a few
employees at the time it did, to so advise. See Hudson Hosiery Company, 72 NLRB
1437, cited by the General Counsel in argument and the Respondent in brief.
The information, so conveyed on the eve of the election, impels the Trial Examiner
to find that the assurance of holiday pay to employees who had no certain knowl-
edge of their right to it, amounted to a promise of benefit by the Respondent with
the hope that it would influence employees to vote against the Union.
F. Refusal to bargain and effect upon election
As related in the preliminary findings above, the Union promptly requested
recognition as the collective-bargaining representative of the Respondent's employees,
at a time when it held some 60 authorization cards from as many employees, which
represented a good majority in the unit claimed by the Union as appropriate. The
Respondent disagreed that the proposed bargaining unit was appropriate , as was its
right, so that the question went to the Board which, on May 19, resolved the question
and ordered an election. A majority of the employees in the unit rejected the Union
as bargaining representative in the election conducted by the Board on June 4.
Lucia's request for recognition, made in Winchester, was renewed by representa-
tives of the Union at a meeting with representatives of the Respondent in New York
City on March 7. At that time, upon the weight of the evidence herein, the Union
had been authorized by a clear majority of the Respondent's employees to represent
them .5 Between the meeting on March 7 and the election on June 4, the Respondent
engaged in -many of the unfair labor practices found herein, including surveillance
and interrogation of its employees, threats and warnings to them arising out of
their union activities, and implied promises of benefits, or implied threats of the
withholding of benefits, in connection with their display of sympathies for the Union.
There is no record of a request or demand for recognition or request or demand to
bargain , from the Union to the Respondent, after the machinery of the Board was
started to resolve the unit and representation question . After the result of the elec-
tion was known, the Union filed its objection thereto and subsequently filed its
charge of unfair labor practices.
One question here to be resolved is whether the Union, within the confines of the
circumstances in this case, should necessarily have made another demand for recog-
nition before filing a charge that the Respondent refused and continued to refuse to
bargain collectively with it as the representative of employees in an appropriate
bargaining unit.
5 At the hearing, the General Counsel proved to the satisfaction of the Trial Examiner
the authenticity of the authorization cards held by the Union.
338207-55-vol 110-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It seems well established in principle that an employer may withhold recognition
from a union representing a majority of its employees in an appropriate bargaining
unit only if the employer acts in good faith in denying the union 's claims. When,
however , such a denial is due to a desire to gain time and to take action to dissipate
the union 's majority, the refusal to recognize the union is no longer justified and con-
stitutes a refusal to bargain within the meaning of Section 8 (a) (5) of the Act.
Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732 (C. A., D. C.).
Here, there is substantial evidence to support a finding, and the Trial Examiner
finds, that the Respondent did not act in good faith , and that any request made by
the Union for recognition after its request of March 7 , would have been a futile act.
Cf. Stewart Oil Company , 100 NLRB 4 , enfd. 207 F. 2d 8 (C. A. 5), and cases cited,
footnote 11.
Activities engaged in by the Respondent during the period of time between Feb-
ruary 29, when Lucia began an active campaign to organize the Respondent's em-
ployees , and June 4 , the day of the election , certainly must have discouraged many
employees from joining the Union , or remaining members of the Union , or adhering
to it . The Respondent argues strongly to the contrary ; it says, for example, that its
supervisors were at places where they had a right to be and that their presence in
such places may have, on occasion , coincided with the holding of union meetings in
the vicinity , and all such meetings were held at places readily accessible to the public.
Other arguments made on its behalf , such as that its efforts to stop union activities
during working hours were merely casual efforts, or that foremen who said the plant
might be closed if the Union came in were merely stating their own opinions in
answer to questions , are as specious . The fact is, as shown by the weight of the evi-
dence herein, that the Respondent aggressively resisted the Union at every step; and
that its efforts in opposition to the union organizing campaign exceeded the bounds
permitted by the Act.
In this situation , the Trial Examiner finds that the employees entitled to vote in
the election conducted by the Board on June 4 were not accorded the right to a free
expression of choice , and that the result of the election should be set aside by the
Board by reason of the intereference by the Respondent of the rights guaranteed to
employees by Section 7 of the Act.
In March the Union had 60 authorization cards, at a time when the Respondent
employed no more than 96 persons , so that a clear majority of employees , excluding
the 3 inspectors and 2 office workers claimed by the Union, then were union adher-
ents. As found above, the Respondent at that time was engaged in activities which
under the Act constituted interference with the rights of employees , and which, being
sufficiently related to the representation issue, must raise a conclusive presumption
that the Respondent was not acting in good faith in resisting the Union 's demand for
recognition . The election of June 4, therefore , did not disprove the Union's claim for
the right of recognition . The facts impel the Trial Examiner to find that the Union
demonstrated the validity of its right to represent the employees in the unit claimed to
be appropriate in March; that the Respondent was not acting in good faith when it
objected to the unit claimed by the Union ; and that the Union in fact should have
been accorded recognition when it first asserted its right thereto.
Concluding Findings
The allegations of the complaint have been substantially proven; the objections
of the Union to alleged conduct affecting the result of the election have been sus-
tained. By the preponderance of the evidence, the Respondent has been shown to
have engaged in surveillance and interrogation of its employees, to have threatened
and warned them, to have promised to give or withhold employee benefits from them,
and to have discouraged an employee, all of which acts were intended to interfere
with, restrain, and coerce its employees in the exercise of the rights guaranteed by
Section 7 of the Act; the Respondent has been shown to have discriminated against
the discharged employee because of her membership in and activities for and on
behalf of the Union and its members and other employees; and it has been shown to
have refused to bargain collectively with the representative of its employees, subject
to the provisions of Section 9 (a) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
FRANCHESTER CORPORATION 1411
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The Trial Examiner has found that the Respondent has discriminated in regard
to the hire and tenure of employment of Robbie McCollum. It will be recommended
that the Respondent offer to her immediate and full reinstatement to her former or
a substantially equivalent position and make her whole for the loss of pay she may
have suffered as the result of the discrimination against her by payment to her of a
sum of money equal to that which she would have earned as wages from on or about
December 6, 1952, to the date of the offer of reinstatement, less her net earnings.
The loss of pay should be computed on a quarterly calendar basis in accordance with
the formula adopted by this Board in F. W. Woolworth Company, 90 NLRB 289,
earnings in one particular quarter to have no effect upon back-pay liability for any
other quarter. It will be further recommended that the Respondent make available
to the Board or its duly authorized agent or agents, upon request, payroll and other
records necessary to facilitate back-pay computations.
The Trial Examiner has found that the Respondent has refused to bargain col-
lectively with a representative of its employees, subject to the provisions of Section 9
(a) of the Act. It will be recommended that the results of the election conducted
by the Board on June 4, 1952, among certain employees of the Respondent in the
unit previously designed by the Board as appropriate to set aside, and that United
Hatters, Cap and Millinery Workers International Union, AFL, be forthwith certi-
fied by the Board as the representative of the employees of the Respondent in the
bargaining unit described by the Board in its Decision and Direction of Election in
Case No. 10-RC-1832; or, in the alternative, that the results of the election con-
ducted by the Board on June 4, 1952, be set aside, and that the Board order the
holding of another election, at the earliest appropriate time, among the employees
of the Respondent, according to its Decision and Direction of -Election in Case No.
10-RC-1832.
The Trial Examiner is of the opinion that the unfair labor practices found herein
disclose a planned course of conduct displaying a deliberate intent on the part of
the Respondent in opposition to the purposes of the Act and indicates the likelihood
of the Respondent resorting to other acts of interference, restraint, and coercion in
violation of the Act. He therefore will recommend that the Respondent be ordered
to cease and desist from in any manner infringing upon the rights of employees as
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Hatters, Cap and Millinery Workers International Union, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of Robbie
McCollum, the Respondent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, and by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, through surveillance and interrogation
of its employees, and warnings and threats to them, and promises of benefits or
threats of the withholding of benefits to them, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
5. By refusing to bargain with a representative of its employees, subject to the
provisions of Section 9 (a) of the Act, the Respondent has engaged in and is engag-
ing in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
f Recommendations omitted from publication.]